We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

Guilt by silence: anything you say (or don't say) can and will be used against you

Does a suspect’s silence in response to investigators’ noncustodial questions trigger the Fifth Amendment privilege against self-incrimination? The answer is no according to the U.S. Supreme Court’s 5-4 decision Monday in Salinas v. Texas, No. 12-246, slip. op. 570 U.S. (June 17, 2013). Justice Samuel Alito, authoring the Court’s plurality opinion, held that criminal suspects must explicitly invoke their reliance on the Fifth Amendment for the privilege to apply. Silence alone is not sufficient. Notably, the Court’s holding affirms that a suspect’s precustodial silence can — and will — be used at trial to establish evidence of guilt. And that is precisely what happened to Genovevo Salinas, who is serving a 20-year sentence for murder. Here is what happened.

Police — investigating a double homicide — visited Salinas at his home to question him about the murder. Salinas was neither placed under arrest nor advised of his Miranda rights (warnings are generally required only when a suspect is under arrest or otherwise in police “custody”). In fact, he voluntarily accompanied police to the station for questioning. Salinas answered the majority of the police officer’s questions during his hour-long interview, but remained silent when asked whether ballistic testing would match his shotgun to shell casings recovered from the murder scene. During his subsequent murder trial, the prosecution offered Salinas’s selective silence during his police interview to prove his guilt. The jury found him guilty; Salinas appealed, arguing that the prosecution’s reliance on his silence violated his Fifth Amendment privilege.

The U.S. Supreme Court disagreed and affirmed his conviction. The plurality held that in the context of a precustodial interview, a witness must — as a general rule — “assert the privilege to subsequently benefit from it.” A witness does not invoke the privilege by simply remaining silent. The holding resolved a split among lower courts over whether prosecutors at trial can comment on a defendant’s precustodial silence to prove guilt. As Salinas tells us, they can so long as the defendant did not expressly invoke the privilege prior to his silence.

So, what should Salinas have done to “expressly invoke” his right to silence? The Court declined to propose any magic words that a witness must utter, noting that “no ritualistic formula is necessary to invoke the privilege.” Courts — as they currently must do in determining whether the privilege was properly asserted in a custodial interrogation — will need to decide the issue on a case-by-case and fact-by-fact basis. At a minimum, Salinas should have replaced his awkward silence with some verbal objection to answering the officer’s question.

The practical lessons offered by Salinas are narrow but are indeed important to the investigation and defense of white collar crimes. Witnesses should refuse voluntary requests to speak with police without counsel present. And white collar practitioners must advise their clients that selective silence in response to voluntary questioning will not secure Fifth Amendment protection. This issue may be of particular importance in the context of corporate investigations, where investigators conduct unannounced visits to employees’ homes in pursuit of incriminating evidence from voluntary interviews. Individuals must explicitly refuse to answer questions based on their Fifth Amendment right and expressly demand to have counsel present. Selective responsiveness could — as was the case in Salinas — be a recipe for guilt by silence.

Compare jurisdictions:Arbitration

“I find the articles on the Lexology newsfeed very relevant and up to date on a variety of topics of interest to my areas of practice. The authors are reliable and current on the topics about which they opine. Even when several law firms write on the same topic, I can often glean new viewpoints and perspectives from the different firms. The headings are also helpful because they briefly and accurately describe the topic and enable me to quickly and efficiently decide what I may or may not want to read in more detail."